Judge won’t let student challenge electronics searches at US border

French-American says he was regularly searched at border for years.

On Tuesday, a US federal judge dismissed (PDF) a 2010 case brought by an American student, Pascal Abidor, who challenged the broad ability of government officials to search and seize electronics like laptops and cell phones at international borders.

It's a major setback for civil liberties advocates, who have long chafed at the huge amount of information that can be taken—without a warrant—from citizens passing through airports. "I was at the initial hearing for the motion to dismiss—I’m not surprised [at the decision],” Abidor told Ars. "But, I am thoroughly unconvinced [as to the judge’s logic]."

Abidor said he was not sure if he and his co-plaintiffs would appeal the decision.

Catherine Crump, the American Civil Liberties Union attorney representing Abidor, dubbed the decision “bad news" on Twitter. She added later, “There is no discernible silver lining to this opinion.”

The case began on May 1, 2010, when Abidor was aboard an Amtrak train from Montreal to New York City. Abidor, a dual US-French citizen and student at McGill University in Montreal, submitted a routine customs declaration and US passport to a Customs and Border Protection (CBP) officer. He explained to the officer that he was studying in Canada, pursuing a doctoral degree in Islamic Studies. Under further questioning, Abidor noted that he had lived in Jordan and traveled to Lebanon within the previous year.

According to court documents, Abidor was ordered to come to the train’s café car for further questioning and searches. The CBP officer ordered Abidor to type in the password to the laptop, which he did. Upon doing so, the officer found images of Hamas and Hezbollah, which Abidor explained were part of his research on modern history of Shiites in Lebanon. Abidor was then subject to further physical search of his computer, cellphones, and person. He was also detained in a holding cell for three hours.

"They say things that on their own would be innocent can together become suspicious," Abidor added in an interview to Ars, underscoring the fact that what happened to him remains legal under American law. “I don’t buy that. I didn’t break any laws. I didn’t hide anything.”

Abidor filed the case in conjunction with the National Association of Criminal Defense Lawyers and the National Press Photographers Association, who are co-plaintiffs.

Searches are "one in a million"

So why was the case dismissed? Judge Edward Korman wrote that Abidor and the other plaintiffs lacked standing.

Abidor could have established standing in this case by adding a cause of action for damages based on his claim that he was subject to an unreasonable search. Such a cause of action would have provided the occasion for a trial or a motion for summary judgment that would have fully developed the record with respect to both the initial quick look search and subsequent forensic search. No such action is alleged. Instead, it appears that Abidor was chosen to participate as a co-plaintiff because, unlike any member of the association plaintiffs, his computer was subject to a search pursuant to the directives that are challenged here.

. . .

Because plaintiffs do not face a threat of certainly impending suspicionless border searches of their electronic devices, they cannot establish standing based on the measures they have undertaken to preserve confidentiality of the sensitive information they claim would be compromised as a result of the searches that the challenged directives authorize.

The judge also noted that searches like the one Abidor was subject to are rare, citing CBP data from 2006 showing that "fewer than one in a million electronic devices were detained by the CBP."

Judge Korman went further in his decision to “discuss the merits of their claims in order to complete the record and avoid the possibility of an unnecessary remand in the event that the Court of Appeals shall disagree.”

The judge found that cursory border searches of electronic devices do not require reasonable suspicion, citing the “border search doctrine.” Further, even though the government did not declare such a suspicion in this case, the judge speculated that it could have done so.

Moreover, although Abidor told officers he was living in Canada, he possessed both a U.S. and French passport, Compl. ¶¶ 26, 28, a circumstance which, while perhaps innocent in itself, in combination with other factors may have increased the level of suspicion, especially as the passport containing the visas from Lebanon and Jordan was not produced initially. See United States v. Sokolow, 490 U.S. 1, 9 (1989) (several factors which by themselves are “consistent with innocent travel” may, taken together, “amount to reasonable suspicion”). The agents certainly had reasonable suspicion supporting further inspection of Abidor’s electronic devices.

But Judge Korman took it one step further, saying that this “reasonable suspicion” requirement would have failed too. Plaintiffs like the reporters' group shouldn't even consider their information confidential if they carry it abroad to places like Syria, he wrote:

Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to “guarantee” confidentiality to their sources, Pls.’ Br. 8- 9, or to protect privileged information, Pls.’ Br. 8. Nor is this the only consideration that prevents them from guaranteeing confidentiality. The United States border is not the only border that must be crossed by those engaging in international travel. “Carrying an electronic device outside the United States almost always entails carrying it into another country, making it subject to search under that country’s laws.” Cotterman, 709 F.3d at 977 n.8 (Callahan, J., dissenting). Surely, Pascal Abidor cannot be so naïve to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bashar al-Assad or Hassan Nasrallah.

. . .

This is enough to suggest that it would be foolish, if not irresponsible, for plaintiffs to store truly private or confidential information on electronic devices that are carried and used overseas.

"I have no trouble going to France"

So what has become of Abidor? He is currently pursuing his studies in Brooklyn and still crosses the Canadian-US border.

But he’s changed his research topic, his means of data-gathering, and his mode of transportation.

“I initially wanted to do something on something more contemporary,” he said. “The ethical questions that arise once you know that anything I write will be sent to the government—I decided that I don’t want to have to worry about anything, or getting anybody in trouble. I went from [studying] mid-late 20th century [Shiism], to late-19th to mid-20th century, looking at decidedly deader people than I initially did. I was initially interested in more visual things. I learned my lesson that collecting photos is a bad idea. I try to keep as little as possible on my laptop. What is there is of little use to anyone outside my field. I try to keep notebooks that I don’t travel with.”

Abidor said he was constantly “subject to secondary search” at the land border crossing until the New York Times wrote about his case in December 2012, at which point the searches abruptly stopped. Since the initial 2010 episode, Abidor said he now only drives across and tries to travel accompanied by friends and family.

“They refused to believe that he was my Dad,” Abidor claimed.

And has he had any trouble flying to other countries?

“I have no trouble going to France,” he said, where he has relatives. “It’s a catch-22. I have the right to leave America, but the right to leave America means I lose my basic rights as a citizen.”

Promoted Comments

Sadly, we've reached the point where Americans need to protect themselves against our own government just as much as any other malicious intruder. We can't rely on law or the judicial system to protect us from the very searches our founding fathers formed the country to escape. I no longer cross the border with any personal information stored on laptops or tablets (other than the contacts in my phone). It's not because I have anything to hide, but rather because I've decided it makes more sense to comply with CBP searches than to try to assert rights our government will go to the ends of the earth to deny. I'd rather not be left to wonder what some over-zealous agent took, or what ends up happening to my data after they obtain it.

Legal Reality Check: You have no expectation of privacy against a search at a national border. This is, almost by definition, the point in having national borders. Every nation-state has always had the sovereign right to deny entry to anyone or anything for the safety of the nation. If something is a threat, or even could be a threat, the border guards are fully within their jurisdiction to detain, search, and reject the entrant.

Now, we can certainly debate about the usefulness or efficiency of border searches, or the rationale behind the scheme of deciding who gets searched. But as for the legal baseline underlying and supporting the Right of the Government to execute such searches, there isn't any real debate to be had.

189 Reader Comments

Sadly, we've reached the point where Americans need to protect themselves against our own government just as much as any other malicious intruder. We can't rely on law or the judicial system to protect us from the very searches our founding fathers formed the country to escape. I no longer cross the border with any personal information stored on laptops or tablets (other than the contacts in my phone). It's not because I have anything to hide, but rather because I've decided it makes more sense to comply with CBP searches than to try to assert rights our government will go to the ends of the earth to deny. I'd rather not be left to wonder what some over-zealous agent took, or what ends up happening to my data after they obtain it.

He explained to the officer that he was studying in Canada, pursuing a doctoral degree in Islamic Studies. Under further questioning, Abidor noted that he had lived in Jordan and traveled to Lebanon within the previous year.

I...think...Yeah. I think I spotted the issue. He's interested in brown people.

It's hard to argue that an Islamic Studies student with semi-hidden passport stamps from Jordan and Lebanon does not constitute reasonable suspicion. It's not like they sent him to Gitmo. They asked him questions and looked over his laptop.

It's hard to argue that an Islamic Studies student with semi-hidden passport stamps from Jordan and Lebanon does not constitute reasonable suspicion. It's not like they sent him to Gitmo. They asked him questions and looked over his laptop.

It is incredibly easy to argue that he didn't constitute any reasonable suspicion. The passport stamps weren't hidden at all, he just didn't give them to the officer immediately upon the start of the onerous search. This entire thing is ridiculous.

This is why people from the rest of the planet only go to the US if they absolutely have to. It is no longer 'the land of the free' or an attractive immigration destination. As for tourism.. has anyone researched the drop in that since the TSA went feral.A country going backwards.

This is why people from the rest of the planet only go to the US if they absolutely have to. It is no longer 'the land of the free' or an attractive immigration destination. As for tourism.. has anyone researched the drop in that since the TSA went feral.A country going backwards.

This. I have family in the US and used to travel there several times a year. Not anymore.And I stopped taking any kind of electronics with me years ago. Traveling to the US has gone from being something I looked forward too, to being something I'd rather not do at all.

Well, at this point, in spite of some of the malfeasance of the NSA and their hijacking, cloud storage is probably the best bet for those who want some privacy while crossing the border. Sync your docs to the cloud, wipe them off the computer with a secure delete, wipe browser history, wipe browser cache, restore them on (hopefully safe) arrival.

You all do remember the bombing in Boston earlier this year? The one that was committed by American citizens that recently travelled to Dagestan. Asking this guy a few questions at the border is why we have a CBP.

Yeah, I do. I also know it was a near carbon-copy of an IRA attack just over 20 years earlier. I was at that attack, had shrapnel fly past me. You know who's been a strong supporter of the IRA, then and now? Rep. Peter King (R-NY2). You might also know him as the Chairman of the House Committee on Homeland Security. Sounds like they should maybe start looking at within first.

You might want to think about some facts before you start spouting crap. Most of the terrorist crap is just that, crap. It's fearmongering and paranoia generating, because you can't justify increased government control to 'protect you' until you have a scary enough enemy. And you know the really handy thing about a fantasy enemy? Since it doesn't really exist, you can't actually 'beat it', and you have a never-ending justification.

Well, at this point, in spite of some of the malfeasance of the NSA and their hijacking, cloud storage is probably the best bet for those who want some privacy while crossing the border. Sync your docs to the cloud, wipe them off the computer with a secure delete, wipe browser history, wipe browser cache, restore them on (hopefully safe) arrival.

Sync your HEAVILY ENCRYPTED docs to the cloud (use TrueCrypt's triple cascading encryption with a very long passphrase using a very diverse set of characters, or something even stronger)...

You all do remember the bombing in Boston earlier this year? The one that was committed by American citizens that recently travelled to Dagestan. Asking this guy a few questions at the border is why we have a CBP.

Legal Reality Check: You have no expectation of privacy against a search at a national border. This is, almost by definition, the point in having national borders. Every nation-state has always had the sovereign right to deny entry to anyone or anything for the safety of the nation. If something is a threat, or even could be a threat, the border guards are fully within their jurisdiction to detain, search, and reject the entrant.

Now, we can certainly debate about the usefulness or efficiency of border searches, or the rationale behind the scheme of deciding who gets searched. But as for the legal baseline underlying and supporting the Right of the Government to execute such searches, there isn't any real debate to be had.

While I am dismayed, I am not surprised. This is a settled matter dating back decades: Until you clear Customs and Immigration, you are not legally in the U.S.A. - even if you're in an airport in Kansas - and thus you have zero protection from the Constitution.

Which amazes me because the same courts have ruled that U.S.A. law applies globally, and that our courts can bring charges against a person for something they've done abroad. But, naturally, the laws of other countries do not apply within the borders of the U.S.A., and international courts don't even exist in the eyes of our legal system.

Every nation-state has always had the sovereign right to deny entry to anyone or anything for the safety of the nation. If something is a threat, or even could be a threat, the border guards are fully within their jurisdiction to detain, search, and reject the entrant.

This is why people from the rest of the planet only go to the US if they absolutely have to. It is no longer 'the land of the free' or an attractive immigration destination. As for tourism.. has anyone researched the drop in that since the TSA went feral.A country going backwards.

It is not worth to give up my fingerprints like a criminal for casual tourism.

Well, at this point, in spite of some of the malfeasance of the NSA and their hijacking, cloud storage is probably the best bet for those who want some privacy while crossing the border. Sync your docs to the cloud, wipe them off the computer with a secure delete, wipe browser history, wipe browser cache, restore them on (hopefully safe) arrival.

Sync your HEAVILY ENCRYPTED docs to the cloud (use TrueCrypt's triple cascading encryption with a very long passphrase using a very diverse set of characters, or something even stronger)...

There, fixed it for you!!

My preference would be to use a service like SpiderOak or Wuala, where data is encrypted on your own device before uploading to the cloud. So remove the data from the laptop or tablet, and clean it with BleachBit. Then if you need any data while traveling, download and decrypt it. Re-encrypt and upload when you're finished, delete the data from the device, run BleachBit again.

My reasoning is that in my scenario, I can let the CBP browse the device and honestly say there is no hidden data. If they detect a TrueCrypt volume, or otherwise find or suspect you're lying, they'll keep your laptop or charge you with lying to a federal official.

So, your choices are: 1) Carry it with you and be subject to search and seizure when you enter the country, or 2) Store it in "the cloud" where the government has access to it the instant you save it, and don't need the pretext of you crossing a border to seize it.

The problem with the judicial interpretation of border searches as applied to electronic media is that the legal framework was established when the greatest invasion of a traveler's privacy was going through his pockets and luggage, and had the potential to interdict only those items deliberately (usually) carried across a border. The extraordinary volume of our private information accessible through our mobile telephones and laptops requires similarly extraordinary juridical protection, and the American justice system has simply not caught up.

Next time, encrypt your hard disk, and when they ask for a password, inform them you won't discuss anything until you can consult with an attorney. They might deny you entry, but you won't be caught up in an ill-educated fishing expedition.

The TSA needs to be dissolved and the check in done by private contractors as it was previously. They violate the constitution all the time, it guarantees against unreasonable search and seizure. You can't supersede that with any law, you have to change the constitution.

There are risks being in a land of liberty that you have to take anyone who appreciates what freedom entails is willing to take that risk.

With TrueCrypt, the data is encrypted on your own device. Then per the rest of Rookie_MIB's procedure, the encrypted data is then uploaded to the cloud, and then securely deleted. There's no encrypted data on the laptop as you transit customs.

Every nation-state has always had the sovereign right to deny entry to anyone or anything for the safety of the nation. If something is a threat, or even could be a threat, the border guards are fully within their jurisdiction to detain, search, and reject the entrant.

Wait a sec, America can deny Americans entry to America?

Without digging into my National Security Law text, I'm fairly sure that if you were carrying the plague or some such disease, the U.S. could deny you entry at the border. The humane thing to do would be to send you to a hospital, but rejecting entry would be within the border guard's rights, I think.

Similarly, if you were a known member of Al Qaeda and a U.S. citizen, I'm pretty sure border guard would be within their right to deny entry, though if arrested/detained you would be subject to U.S. law and not Gitmo purgatory when charges are brought.

Legal Reality Check: You have no expectation of privacy against a search at a national border. This is, almost by definition, the point in having national borders. Every nation-state has always had the sovereign right to deny entry to anyone or anything for the safety of the nation. If something is a threat, or even could be a threat, the border guards are fully within their jurisdiction to detain, search, and reject the entrant.

Now, we can certainly debate about the usefulness or efficiency of border searches, or the rationale behind the scheme of deciding who gets searched. But as for the legal baseline underlying and supporting the Right of the Government to execute such searches, there isn't any real debate to be had.

Yes, but he's a U.S. citizen. The argument against giving Gitmo detainee's any of our rights was because they weren't citizens.

Every nation-state has always had the sovereign right to deny entry to anyone or anything for the safety of the nation. If something is a threat, or even could be a threat, the border guards are fully within their jurisdiction to detain, search, and reject the entrant.

Wait a sec, America can deny Americans entry to America?

Without digging into my National Security Law text, I'm fairly sure that if you were carrying the plague or some such disease, the U.S. could deny you entry at the border. The humane thing to do would be to send you to a hospital, but rejecting entry would be within the border guard's rights, I think.

Similarly, if you were a known member of Al Qaeda and a U.S. citizen, I'm pretty sure border guard would be within their right to deny entry, though if arrested/detained you would be subject to U.S. law and not Gitmo purgatory when charges are brought.

Again, this is all IIRC.

In the case of being a suspected terrorist I would very much hope they would have their day in court.

If they are carrying the plague then I hope to bloody hell the airport institutes correct infectious diseases controls rather than just denying entry. It's not just about being humane but also about stopping the spread of deadly disease.

You all do remember the bombing in Boston earlier this year? The one that was committed by American citizens that recently travelled to Dagestan. Asking this guy a few questions at the border is why we have a CBP.

Those who prop up the corpses of those who died in Boston, New York, London, etc as a rational for increased security (and general xenophobia) are a far greater danger to freedom and democracy than those they claim to fight.

Also, what damn good would the CBP have done in the Boston bombing? At most they would have just checked their things when they got back to the US, and I highly doubt anything they had on them at the time would have resulted in some great revealing of their plot or anything that would have brought charges against them. I mean what, do you think they were carrying bomb schematics on them when they got off the plane? Bomb materials? What? It's not like they were wearing a "Death to America" T-shirt and burning an US flag while going through customs. Our current system of border patrol, much like the TSA, is only really designed to allow minimum wage, minimum training, glorified rent-a-cops hassle the average citizen who forgets that they left their pocket knife in their bag or, god forbid, has something middle-eastern looking on them. Smugglers and other criminals have other channels to bypass the border (or bank on expendable personnel and that 1:1,000,000 chance of inspection), and no terrorists have been caught at a border checkpoint/airport security line. When terrorists have been caught, it is usually when they try to use the bomb.

TL;DR version: Quit exploiting tragedies to justify the trampling of civil liberties and your fear of the Other.

Legal Reality Check: You have no expectation of privacy against a search at a national border. This is, almost by definition, the point in having national borders. Every nation-state has always had the sovereign right to deny entry to anyone or anything for the safety of the nation. If something is a threat, or even could be a threat, the border guards are fully within their jurisdiction to detain, search, and reject the entrant.

Now, we can certainly debate about the usefulness or efficiency of border searches, or the rationale behind the scheme of deciding who gets searched. But as for the legal baseline underlying and supporting the Right of the Government to execute such searches, there isn't any real debate to be had.

Yes, but he's a U.S. citizen. The argument against giving Gitmo detainee's any of our rights was because they weren't citizens.

We're talking about different rights. The 4th Amendment Right against unreasonable search and seizure is what is at issue in this case. The Border Search Exception is the doctrine as to why no one, not even U.S. Citizens, get 4th Am. Rights at a border crossing.

For the Gitmo detainees, the Rights at issue are more long the lines of the 5th, 6th, & 7th Amendments, relating to the right to a speedy trial, by your peers, etc., i.e. access to the U.S. Judicial System. A U.S. citizen gets that inherently.

Legal Reality Check: You have no expectation of privacy against a search at a national border.

I disagree, and refuse to acknowledge any such law. I realise this is the current opinion of many people in the US especially law enforcement, but it's not how everyone reads the law and I think it's wrong and needs to be challenged in court properly. Preferably an international court.

It is a basic human right, in all civilised countries, to have our privacy protected. If they have no evidence or reasonable suspicion then I do not consider it acceptable or legal to breach privacy.

This is, almost by definition, the point in having national borders. Every nation-state has always had the sovereign right to deny entry to anyone or anything for the safety of the nation.

I'm fine with that. They're free to tell me I can't enter the country and send me back on a plane. No problems, no hard feelings, I'll go home. I'm not a US citizen and can live my life comfortably without ever visiting. But I don't want them searching my private documents unless they have some kind of reasonable evidence against me.

That someone has brown skin and travelled to Lebanon in the last year is not "reasonable evidence". It's racial and cultural discrimination. Pure and simple. Which is illegal.

Surely, Pascal Abidor cannot be so naïve to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bashar al-Assad or Hassan Nasrallah.

So by this logic, we can detain anyone crossing our border, subject them to torture, force them to "confess", and execute them. That's what Iran does to people they don't like crossing their border, so you'd be foolish to not expect any other country to do that too right?

Whether they would seize the item depends on the totality of the circumstances surrounding the inquiry. If a white middle-class educated person said "No; I have personal photos and information on my laptop and am not willing to allow anyone access to my private data," the respose may very well be a brief unpleasant Q&A followed by letting the traveler continue. Change those variables, and the results may vary widely. However, the more travelers who refuse to allow casual search of their private media, the lower the probability that your individual circumstances will rise to the level at which your resistance is overcome. And the right to an attorney exists in any US law enforcement context.